December 2011

On December 15, 2011, the American Horse Council (AHC) issued a news release publicizing its opposition to the Department of Labor’s (DOL) proposed child labor regulations concerning children working on farms because of its potential negative impacts on the horse community.

The AHC was organized in 1969 to represent the horse industry in Washington before Congress and the federal regulatory agencies. It is a non-profit corporation that represents all segments of the equine industry.

According to the AHC, the proposed rule would effectively bar minors under the age of 16 from working in most capacities in agriculture, especially around horses and other livestock.

On November 30, 2011, the AHC filed comments with the DOL expressing its concerns with the proposed rule. A link to the AHC’s full comments can be found here.

According to the AHC:

The proposed rule would expand the number and scope of Hazardous Occupation Orders (HOs) to such an extent that young people not working on a farm or ranch owned by their parents would be precluded from working in agriculture. The proposed rule would prohibit herding livestock on horseback or foot in confined spaces such as pens and corrals. Furthermore, the DOL would prohibited youth from engaging or assisting in almost all common animal husbandry practices, such as branding, breeding, dehorning, vaccinating, castrating livestock, or treating sick or injured animals including horses. All these activities combined represent a great deal of the work performed in association with livestock.”

The proposed DOL rule does include an exemption for children working on farms and ranches owned by their parents, but the AHC believes this exemption is too narrow in scope:

The AHC does not believe the proposed rule recognizes the reality that many family farms and ranches are held as LLCs or partnerships with other family members. We believe there is no reason to believe it has ever been the intent of Congress to excluded farms owned by two siblings or multiple generations of a family from the parental exemption. Doing so would impact thousands of family farms and ranches and unnecessarily deprive young people of the opportunity to work on a family farm or ranch and all the benefits associated with such work…”

Texas Farm Bureau has also recently published these blog posts featuring the concerns of family farmers who believe the proposed rule would rob many children of the valuable lessons that they could learn working in agriculture and around livestock:

In an age where most kids in the United States spend most of their free time in front of a TV set, an I-Pad or a computer, it is hard for me to imagine that so many kids are getting hurt working on farms that a new federal law is required to protect them from “exploitation”. Do any of you readers know what the real motivation behind this proposed rule really is? Please feel free to leave your ideas in the comments section.

In next week’s post, I’ll cover the most significant legal developments of 2011 that affect Texas horse owners. I wish all of you a very Merry Christmas and safe travels this weekend!

Most of you have already read about the heated legal battle over the horse-drawn carriage industry in New York City, where some groups have been pushing for decades to outlaw carriage rides. On its face, the battle seems to be about whether or not the industry is inherently cruel or dangerous for the horses. But more recently, some facts have surfaced pointing to other interests and agendas that may be fueling the push to banish the carriage industry from New York.

Emily B. Hager authored a story published last week in the New York Times that delves into underlying interests of some who are attempting to ban carriage rides in New York City. A link to the article can be found here.

One issue raised in the Times article are allegations of foul play related to the ASPCA’s involvement in the efforts to outlaw the horse-drawn carriage industry. According to Ms. Hager’s article, Dr. Pamela Corey (chief equine veterinarian for the ASPCA), said her supervisors pressured her to distort her findings about the death of a carriage horse in order to turn public opinion against the carriage industry. After Dr. Corey spoke out, the ASPCA suspended her. Dr. Corey has since filed a complaint with the state attorney general’s office, in which she states that she had been pressured on several occasions to slant her professional opinion to help achieve a ban.

Ms. Hager also points out that while the ASPCA is one of the groups leading the effort to ban horse-drawn carriages, it is also one of three entities that regulate the carriage industry in New York.

The ASPCA’s president, Ed Sayres, is also reported in the Times to have teamed up with Stephen Nislick, chief executive of the development company Edison Properties, to develop a plan to replace carriage rides with electric-powered replicas of antique cars. Sayres and Nislick are reported to have started a nonprofit organization, known as NY-Class, that has collected more than 55,000 signatures backing city ordinances that would end the carriage horse industry in New York. NY-Class was allegedly started up through a $400,000 donation from the ASPCA and a contribution from Mr. Nislick.

With respect to these potential conflicts of interest, Ed Sayres is quoted in the Times as saying, “I don’t see it as a conflict. If we don’t bring forward the risk factor that we are observing, then it would be negligent.”

Real estate developers (including Mr. Nislick) are alleged to be involved in the movement to outlaw the carriage industry because they covet the land on the Far West Side where the horses have long been stabled.

According to Ms. Hager’s article, some carriage owners acknowledge carrying out a campaign to infiltrate the activist groups and secretly record their strategy sessions. In one recording, Mr. Nislick is said to describe efforts to gain the support of city politicians by giving them campaign contributions.

The carriage industry is reported to have filed its own complaints with the city and state agencies against the ASPCA and NY-Class.

The Times article includes some stats on drivers’ earnings, which reportedly range from $40,000 to $100,000 annually, depending primarily on whether they own their horses, whether they work the day or night shift, and how bad the weather and economy are. If you know how much it costs to live in Manhattan, you know that even $100,000 per year before taxes can be hard to live on there. One would think that the last thing the carriage drivers would want to do is abuse or mistreat their horses if their livelihood depended upon them.

These latest allegations are definitely thought-provoking. One must wonder whether those who donate money to the ASPCA hoping to fund food, medicine, and shelter for unwanted animals know that the Society has spent at least $400,000 on this political campaign.

Also, should the ASPCA still be one of the regulatory bodies governing the NY carriage industry, given the conflicts and allegations that have now arisen?

Finally, what would happen to the horses if those pushing for a ban were successful? According to Dr. Nena Winand, an equine veterinarian from upstate New York who is a member of the American Association of Equine Practitioners, “If we banned the carriage horse industry tomorrow, they would go straight to slaughter. There is no big field out there, there is no one to pay the bills.”

As discussed in this prior post, mistreatment of or cruelty to horses is already illegal in State of New York. Given these latest allegations, this fact does cause one to ponder whether animal welfare is the real impetus behind the movement to outlaw the carriage industry in New York City.

We’ve all heard accounts that horse thieves have, in the past, been sentenced to death by courts in Texas or legally hanged by vigilantes. The demise of Jake and his compatriots in the movie Lonesome Dove is a depiction of one such vigilante hanging in Texas. All kidding aside, verifiable accounts of capital punishment for horse theft (both after a trial and by vigilantes) come not only from Texas, but also from other U.S. states and even other from other countries.

Photo: Per Wikipedia, this photo is of a horse thief’s hanging in Oregon, circa 1900 [Source]

According to a BBC news story from May 2011, some folks in Scotland even reenacted the events surrounding the 1811 hanging of a fellow named George Watson for horse theft. Watson was described in the BBC article as a “tinker-traveller” who made off with a “distinctive grey Clydesdale mare” belonging to a man who offered shelter to Watson and his family. Watson is alleged to be the last man hanged in Scotland for horse theft.

Urban legend has it that horse thieves can still be hanged or sentenced to death in Texas. But unfortunately for those who still wish to see horse thieves put to death, horse thievery is no longer a capital felony in Texas. Under Texas Penal Code Section 31.03(e), horse theft is a third-degree felony (2 to 10 years in prison) if the value of the horses stolen in a single transaction is less than $100,000. Horse theft in Texas is punishable as a second degree felony (2 to 20 years in prison) if the horses stolen in a single transaction are worth $100,000 to $199,999, and a first degree felony (5 to 99 years in prison) if the horses stolen in a single transaction are worth $200,000 or more. Seealso Chapter 12 of the Texas Penal Code.

Pursuant to the U.S. Supreme Court’s 2008 opinion in Kennedy v. Louisiana, the power of any U.S. state to impose the death penalty against an individual for committing a crime that did not result in the death of a human victim is now limited to crimes against the state (i.e., espionage, treason).

But vigilante justice for horse thieves is not completely dead in Texas. As discussed previously, there are still circumstances under which a person in Texas could legally shoot or otherwise kill a horse thief if the person, for example, is a witness to horse theft in progress and the circumstances warrant the use of lethal force. See these prior posts:

Facts revealed in the recent Jaci Rae Jackson case may cause some to wish capital punishment were still available for horse theft. As you have probably read by now, Jackson is a now 19 year-old Southern Arkansas University student who was charged this week with a number of felonies in Arkansas and Oklahoma for the theft of 5 college rodeo horses and a horse trailer. Jackson cannot (if convicted) be sentenced to death for her actions. Ms. Jackson has also been charged with related post-theft crimes which, according to reports, include allegedly participating in the killing and dismemberment of one stolen horse, and tying the 4 others to trees without sufficient food or water. Ms. Jackson’s arraignment is expected to occur on December 15, 2011.

Apropos, how can we all take steps to prevent the theft of our horses and trailers and make sure thieves are brought to justice? Dr. Pete Gibbs, Texas A & M University professor and Extension Horse Specialist, published an informative article entitled “15 Steps to Minimizing Theft of Horses and Equipment”, which can be downloaded here.

It’s finally raining in Texas! And grass is beginning to grow in pastures following the crippling drought brought on by Texas’s “Nuclear Summer of 2011”. Horse businesses in many parts of the country have only relatively recently begun to purchase round bales and make other preparations for winter. But most operators in Texas have been forced to feed horses practically every bite they’ve had to eat since summer, and they will have to continue feeding through winter and early spring along with everyone else.

To manage this unfortunate scenario, and to make sure your pastures are restored to pre-drought conditions in 2012, there are a couple of proactive steps you can take:

1) Raise board / maintenance rates to cover your increased costs for hay. If you need to increase fees to cover your hay costs, be sure to send each of your customers a notice of the rate increase well in advance of the month you actually increase rates for feeding. Your written agreements with customers should contain language indicating that boarding / maintenance rates are subject to change. If this is not already in your agreements, it would be a good idea to include this in your 2012 agreements.

2) Share hay delivery costs. For delivered hay, it is typically less expensive to buy it by the stacker load (about 5 tons) or an entire semi-load (about 17 to 20 tons). If you can’t use this much hay, you might save freight costs by finding another farm that is interested in splitting a load.

3) Take immediate action to speed pasture recovery. According to an article by Dr. Daren Redfearn, Oklahoma State University Cooperative Extension forage and pasture management specialist, this can be done by a combination of restricted grazing, fertilizer, and weed control. Dr. Redfearn’s full article can be found here. Oklahoma’s pasture conditions in the wake of the 2011 drought and current moisture levels are comparable to those in most parts of Texas.

Speaking of Oklahoma State University and Oklahoma, a recap of last weekend’s fan riot at Boone Pickens Stadium in Stillwater that injured 13 people can be found here. One emergency medical technician described the mayhem resulting from the riot as “much worse” than the magnitude 5.6 earthquake that hit Stillwater in November.

I am so excited, y’all! Yesterday, the ABA Journal released its 2011 list of the 100 best law blogs (“blawgs”), and the Equine Law Blog was included on the list. I am so happy and honored that this blog was selected from over 1,300 worthy nominees. Thanks to the readers who make this blog possible and worthwhile. Thanks especially to Holden Hoggatt, equine attorney from Jennings, Louisiana, and others who nominated this blog for inclusion on the Top 100 list.

The Equine Law Blog is now up for another vote in the “Niche” category of law blogs. There are a whopping 14 blogs included in the “Niche” category, including heavy hitters like China Law Blog and TaxGirl. You should check out the amazing blogs on the Top 100 list, if you have not already.

In case you’re wondering how to spend all your “free time” between now and December 30, 2011, you can vote for the Equine Law Blog in the “Niche” category by clicking on the ABA Journal Blawg 100 badge in the left hand column of this blog. You don’t have to be a subscriber of the ABA Journal or a lawyer to vote. Pardon the "bleg," but I would appreciate your vote!

Thanks again, everyone, for your support and for your readership of the Equine Law Blog. Have a great weekend!

Pigs are flying, or they must be somewhere in the world. President Barack Obama (while campaigning for his second term in office, I might add) has signed a bill essentially re-legalizing horse slaughter, and PETA is happy about it! Had you told me this a couple of weeks ago, I would have thought these events as likely an Occupy Wall Street protester taking an investment banking job at Goldman Sachs.

The recent bill reinstituting federal funding for horse slaughter plant inspections has been covered ad nauseam in a number of news stories, so I won’t belabor the details. It is important to note at the outset that there was never a federal law "banning" horse slaughter in the U.S. In a nutshell, there was law prohibiting federal funding of USDA horse meat inspections put in place in 2006, and that law esentially ended horse slaughter for human consumption in the U.S. The 2006 "USDA defunding" provision was lifted on November 18, 2011 as part of a Congressional bill signed by President Obama. As a result, horse slaughter plants are already being considered several states and may be operational in 30 to 90 days. But plants specifically designed for horse slaughter cannot be developed in Texas, California, Illinois and Oklahoma, where state laws specifically prohibit horse slaughter plant operations. For more information, see this article.

But the real news story, to me, is the astounding fact that PETA believes resuming horse slaughter in the U.S. will reduce overall horse suffering, and supports the move. Yes, we’re talking about PETA–the same, often controversial animal rights group known for campaigns like “fur is murder” and the lawsuit filed against Sea World for "enslaving" killer whales.

In a Christian Science Monitor interview, PETA founder Ingrid Newkirk said PETA believes the United States never should have banned domestic horse slaughter because “the amount of suffering that it created exceeded the amount of suffering it was designed to stop.”

According to the Christian Science Monitor article, “PETA says the optimal solution is to ban both consumption slaughter and the export of horses, but it supports reintroducing horse slaughterhouses in the U.S., especially if accompanied by a ban on exporting any horses at all to other countries.” Really? A ban on exporting any horses at all to other countries? Does anyone know if PETA really proposes that we make it illegal to export any horse to any country outside the U.S., for any purpose? If so, how would this possibly work and what would it do to our horse industry?

These questions aside, at least proponents of horse slaughter can be glad that for once, an association like PETA agrees with them.

Compare PETA’s position to that of Forbes contributor Vickery Eckhoff, who blasts the Thoroughbred industry in an article this week for allegedly being “silent” with respect to the fate of ex-race horses that end up being slaughtered (and tortured in the process, according to Ms. Eckhoff).

As an aside, it should be noted that many Thoroughbred racing industry associations are members and sponsors of the Unwanted Horse Coalition (UHC), whose goal it is to reduce the numbers of unwanted horses in the U.S. so that fewer end up being slaughtered…or worse (yes, I consider many fates worse than slaughter, such as dying of starvation, dehydration, or illness in the back pasture). For a list of the current member associations of the UHC, click here.

Ms. Eckhoff, like many in the “anti-slaughter” camp, believes horse slaughter should be banned because is inherently cruel and abusive and it cannot be made humane, even if it is done in accordance with USDA regulations. Anti-slaughter groups and individuals often place the blame on breeders, and urge the government or others to penalize people for over-breeding instead of allowing horses to be slaughtered. How would this be done, I wonder, and at what cost? And is there really no way a horse slaughter facility can be designed to make the slaughter process as humane for horses as it is for other livestock? I welcome your thoughts.

About Alison

Alison is recognized nationally as a top expert in the area of equine law. Alison’s equine industry focus involves providing professional assistance and legal representation to individuals, business entities, associations, government agencies and legislative bodies who are involved in the horse industry.